28 Mo. App. 632 | Mo. Ct. App. | 1888
delivered the opinion of the court.
On September 9, 1886, Joseph M. Hayes, a merchant, sold to M. Abrahams, a merchant tailor of this city, piece goods of the value of $964.14. On October 11, 1886, Abrahams sold to the plaintiff, who is his brother-in-law and former partner, the entire contents of his store, including store-goods and fixtures, inventoried at $12,288.56, for a recited consideration of $10,752.49, being twelve and a half per cent, less than the inventoried value, and at once delivered to him possession. The consideration of the sale, according to plaintiff’s statement, consisted of an indebtedness from Abrahams to plaintiff, the bulk whereof originated in January, 1884. Hayes, hearing of this sale, sued out a writ of attachment, and caused the same to be levied by the defendant sheriff on so much of the goods sold by him to Abrahams as could still be found, being of the value of six hundred and fifty dollars. The plaintiff thereupon brought this action of replevin for the recovery of the goods so taken, against the defendant sheriff.
The petition contains the usual averments. The answer is a general denial, and sets up fraud in the sale from Abrahams to plaintiff. The case was tried by a jury, who brought in a verdict for the defendant.
The first error complained of is, that there was no evidence whatever attacking the good faith of the sale, and that the court erred in refusing to instruct the jury, at the close of the entire case, to find a verdict for the plaintiff.
Passing the question whether such an instruction is ever warranted in a case where the burden of proof, on any branch of the case, is with the plaintiff, we turn to the evidence.
There was also some slight evidence from which the-jury might legitimately infer that the value of the goods transferred was much greater than the value stated in the inventory accompanying the bill of' sale.
As to the objection urged by plaintiff, that the case was tried on an erroneous theory, we may say this : all cases of this character necessarily consist of two elements, the fraud of the vendor, and the vendee’s participation therein. We cannot see on what theory the court can exclude evidence offered tending to show the former. It is true proof of the former does not of itself prove the latter. But evidence of the former, introduced with a view of connecting it with the latter, is, from the nature of the case, necessarily admissible.
This brings us to the complaint that the court erred in refusing instructions asked by the plaintiff. The plaintiff asked fifteen instructions, of which number the court gave two with slight modifications, but in a form not excepted to by the plaintiff, and refused to give the residue. As the issues were simple and few, and a multitude of instructions could only tend to confound the jury, the court would have been fully justified, on the authority of Crawshaw v. Sumner (56 Mo. 517), to refuse .all the instructions asked by the plaintiff, on account of their number alone. Thus it is evident that the plaintiff is in no position to complain that part of his instructions were refused.
But we are further of opinion that the instructions given by the court of its own motion submitted to the jury the plaintiff’s case fully and fairly. These instructions were as follows:
“ If the jury believe, from the evidence (1) that, at the time of the transfer of the goods in Abrahams’ store, spoken of in the evidence, that Desberger was a creditor of Abrahams, as claimed by him; (2) that there was no
“ The court instructs the jury that a debtor, though insolvent, has a legal right to prefer one creditor over another, even though, in doing so, he may thereby hinder or delay other creditors in the collection of their debts, or altogether exclude them, provided said preference is made and received fairly and honestly for the sole purpose of making' such preference, and not for the purpose of hindering, or delaying, or defrauding other creditors; therefore, if they believe that the sale to Desberger by Abrahams was not, under the evidence and the other instructions, fraudulent for other reasons, they will find for the plaintiff, though they may believe that the necessary effect of the - sale was to hinder or delay other creditors, or entirely to exclude them; and that Desberger, at the time of the sale, knew it, and though they may believe that the sale included the goods of' Hayes and other creditors, which had been bought and. not paid for by Abrahams.”
Nor was there anything in the instructions given on behalf of defendant of which plaintiff can justly complain, if we eliminate the instruction touching the change of possession which the statute requires. As it was substantially conceded by the evidence of both parties that there was a sufficient change of possession within a reasonable time, and sufficiently notorious to answer the requirements of the statute, this instruction should not have been given. As it is highly improbable, however, that, under the facts of the case, the jury could have been influenced in their finding by this instruction, the error if any was not prejudicial and will not warrant a reversal.
Judgment affirmed.